Lawsuit seeks relief for injured workers struggling with mental illness
WSIB continues to reject ‘chronic mental stress’ claims, despite rulings of unconstitutionality
For 20 years, the Workplace Safety and Insurance Act has provided that workers who develop mental stress in the workplace are not eligible for benefits. In three separate decisions in 2014, 2015 and 2016, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) held that this exclusion from benefits is unconstitutional, because it violates the equality rights provisions of the Canadian Charter of Rights and Freedoms.
The Ontario government did not seek to have any of those decisions reviewed by the courts. Instead, it allowed the Workplace Safety and Insurance Board (WSIB) to continue to rely on the impugned provisions to deny workplace stress claims. Because the WSIAT does not have the power to strike down a legislative provision, injured workers were left to continue to challenge the provisions on a case-by-case basis, indefinitely.
Finally, after much pressure, the government recently passed legislation to repeal the offending provisions and to allow claims to be made based on workplace stress. However, the amendment does not come into effect until January 2018, and the legislation contains no transitional provisions to deal with claims for injuries occurring prior to that date.
As a result, the Ontario Network of Injured Worker Groups, Injured Worker Consultants, and Margery Wardle, an individual affected by the legislation, have filed an application with the Ontario Superior Court. The application asks the court to declare that the impugned provisions violate the Charter and are invalid with respect to accidents occurring before January 2018. It also seeks an order directing the WSIAT and the WSIB to determine all pre-January 2018 claims, requests for reconsideration and appeals as if the impugned provisions do not exist.
In reporting on the court application, the Toronto Star and the CBC interviewed Christine Davies, one of the lawyers representing the applicants. As reported by the Toronto Star:
“We took this case on because this is an issue that injured worker advocates have been pressing for several years at all avenues without being afforded any kind of effective change until the very recent changes … which was in itself insufficient,” said Goldblatt lawyer Christine Davies, who is working on the case on behalf of Wardle, the Injured Workers Consultants legal clinic, and the Ontario Network of Injured Workers Groups.
“Unfortunately and despite the efforts of injured worker advocates, there simply hasn’t been a satisfactory response.”
As it stands, people who suffered chronic stress injuries that occur before 2018 will only be able to win compensation by appealing their cases all the way to the board’s independent tribunal.
Due to significant backlogs, that process often takes years — and many claimants are financially or emotionally unable to see the appeals through, Davies said…
There are more than 170 cases before the appeals tribunal in which workers are seeking compensation for ongoing mental stress, and there are likely many more who didn’t bother to file claims because of the exclusion, said lawyer Christine Davies of Goldblatt Partners, a labour law firm in Toronto.
The Ontario legislature recently passed an amendment to the Workplace Safety and Insurance Act that repeals the exception to allow for compensation for chronic mental stress. But it will only take effect from Jan. 1, 2018.
“That doesn’t address the situation of all those workers who are affected [already] who still don’t have anywhere to go for compensation for their workplace injuries that are caused by chronic mental stress,” said Davies in an interview with CBC News on Tuesday.
We will post updates on the case as it winds its way through the courts.